In Ms M Forstater v CGD Europe & Ors [2019] UKET 2200909/2019, Ms Forstater was sacked as a consultant with the Center for Global Development, Washington DC, and its European arm. She contended that the relationship came to an end because she had expressed “gender-critical” opinions: in outline, that sex is immutable, whatever a person’s stated gender identity or gender expression. She further contended that her gender-critical views were a philosophical belief – and therefore protected under the Equality Act 2010 – and that she had suffered direct discrimination as a result or, alternatively, indirect sex discrimination because her views were more likely to be held by women than by men [3].

The principal issue was whether, in fact, she held a protected philosophical belief within the terms of s.10 Equality Act 2010:

“The Claimant believes that ‘sex’ is a material reality which should not be conflated with ‘gender’ or ‘gender identity’. Being female is an immutable biological fact, not a feeling or an identity. Moreover, sex matters. It is important to be able to talk about and take action against the discrimination, violence and oppression that still affect women and girls because they were born female” [5].

Further, she relied on her lack of belief in the proposition that

“Some people believe that everyone has an inner ‘gender’, which may be the same as or different to their sex at birth, and that gender effectively trumps sex, so that ‘trans men are men’ and ‘trans women are women”’ Typically such proponents believe that that ‘trans women are women’ from the moment they identify as women (if not before)” [5].

(In addition, there was a question as to whether or not she was, in fact, “employed” for the purposes of the 2010 Act.)

“UK gov consultation on reforming the #GenderRecognitionAct – proposes to dramatically change scope of the law; from requiring medical diagnosis of gender dysphoria for change of sex on birth certificate, to using the basis of ‘self identification’ […] I share the concerns of @fairplaywomen that radically expanding the legal definition of ‘women’ so that it can include both males and females makes it a meaningless concept, and will undermine women’s rights & protections for vulnerable women & girls […] Some transgender people have cosmetic surgery. But most retain their birth genitals. Everyone’s equality and safety should be protected, but women and girls lose out on privacy, safety and fairness if males are allowed into changing rooms, dormitories, prisons, sports teams” [24].

In early October 2018, some of the staff at CDG raised concerns about some of Ms Forstater’s tweets, alleging that they were “transphobic” – an allegation that she denied [29].

The judgment quotes a long list of tweets and statements by Ms Forstater [34-38] and in her witness statement she stated, inter alia, that

“I do not believe it is incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender” and “I believe that there are only two sexes in human beings (and indeed in all mammals): male and female. This is fundamentally linked to reproductive biology. Males are people with the type of body which, if all things are working, are able to produce male gametes (sperm). Females have the type of body which, if all things are working, is able to produce female gametes (ova), and gestate a pregnancy” [39].

Employment Judge Tayler accepted that “these passages reflect core aspects of the Claimant’s belief” [40]. Applying the criteria in Grainger plc v Nicholson [2009] UKEAT 0219/09/0311:

• he accepted that Ms Forstater genuinely held the view that sex was biological and immutable and that, for her, it was “more than an opinion or viewpoint based on the present state of information available” and related to substantial aspects of human life and behaviour [82]; and
• on balance, he did not consider that her belief failed to attain the necessary level of cogency, seriousness, cohesion and importance to be protected – “even though there is significant scientific evidence that it is wrong” [83].

However, the absolutist nature of her views was “incompatible with human dignity and the fundamental rights of others” [84]. Denying the right of someone with a Gender Recognition Certificate to be the sex to which he or she had transitioned went against the terms of the Act, which states that the change of sex applies for all purposes:

“Therefore, if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. That is not something that the Claimant is entitled to ignore” [84: emphasis added].

There was nothing to stop Ms Forstater from campaigning against the proposed revision to the Gender Recognition Act and she was entitled to put forward her opinion that there should be some spaces that are limited to “women assigned female at birth” where it was a proportionate means of achieving a legitimate aim. But that did not mean that her absolutist view was a protected belief for the purposes of the Equality Act [86] and they were not “worthy of respect in a democratic society” [90].

Finally, in respect of the “lack of belief” argument – the belief that Ms Forstater contended she does not hold, that everyone has a gender which may be different from their sex at birth and which effectively trumps sex – though it did not face the same issue of incompatibility with human dignity and the fundamental rights of others, it failed to meet the Grainger criteria [92]. In conclusion:

“Put either as a belief or lack of belief, the view held by the Claimant fails the Grainger criteria and so she does not have the protected characteristic of philosophical belief” [93].